Davis v. Landon

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Marriage of:

JACQUELYN FAY DAVIS, Petitioner/Appellant,

v.

JASON RICHARD LANSDON, Respondent/Appellee.

No. 1 CA-CV 18-0645 FC
FILED 10-1-2019

Appeal from the Superior Court in Maricopa County
No. FC 2014-071553
The Honorable Lisa Ann VandenBerg, Judge

AFFIRMED

COUNSEL

Joseph M. Huey PLC, Scottsdale
By Joseph M. Huey
Counsel for Petitioner/Appellant

John W. Bain PLLC, Phoenix
By John W. Bain
Counsel for Respondent/Appellee

DAVIS v. LANSDON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

C A M P B E L L, Judge:

¶1 Appellant Jacquelyn Fay Davis (“Mother”) challenges the
family court’s parenting time order and its allocation of associated travel
costs. We affirm.

BACKGROUND

¶2 The parties’ marriage was dissolved by consent decree in
2014. At that time, Mother resided in Arizona and Jason Richard Lansdon
(“Father”) resided in California. The decree designated Mother as the
primary residential parent for the parties’ two minor children and
implemented a parenting plan under which Father received reasonable
parenting time.

¶3 In 2016, the parties agreed to an amended parenting plan that
provided Father parenting time “every other week beginning on Friday
after the children are released from school, or 3 p.m. if the children are not
in school, continuing through Tuesday at 8 a.m.” The plan also gave each
party “two weeks of uninterrupted parenting time during [each] summer
commencing on a mutually agreed-upon date” and divided holiday
parenting time as follows:

Mother: Children’s birthdays, Mother’s Day, Easter,
Halloween, Independence Day, Christmas Eve,
Christmas, New Year’s Eve, New Year’s Day.

Father: Father’s Day, Thanksgiving break, other
portions of the children’s winter break.

¶4 Approximately two years later, Father moved to Kentucky.
Asserting his move rendered the parenting plan “logistically impossible,”
Father petitioned to modify parenting time and child support. He requested
parenting time during the summer, spring break every year, and winter
break in alternating years. In response, Mother proposed that Father receive
“up to 42 days of summer parenting time . . . each year” and requested for

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DAVIS v. LANSDON
Decision of the Court

herself two uninterrupted weeks of parenting time during summers “for
her vacation with the children.” She also proposed that the parties split each
winter break such that the children would be with her for Christmas and
with Father for New Year’s Day. Finally, Mother requested that the children
“travel on direct flights” and be “escorted by a parent” when traveling
between Arizona and Kentucky, with Father bearing all transportation
costs.

¶5 Following an evidentiary hearing, the family court ordered
that Mother would remain the primary residential parent. The court
granted Father summer parenting time but gave Mother “at least 1 week of
consecutive summer vacation [with the children] during this period,” with
her paying “the costs of this summer week transportation both on leaving
and returning to Father.” The court also ordered that the parties split winter
break each year and set a holiday parenting time schedule as follows, with
the parties “shar[ing] the costs of such [travel] equally”:

Mother: Mother’s Day, Halloween, Thanksgiving in
even years, the children’s birthdays in odd
years, Mother’s birthday.

Father: The children’s spring break, Father’s Day,
Thanksgiving in odd years, Father’s birthday.

¶6 Mother moved to amend the order, arguing the holiday
parenting time schedule was “impractical or financially burdensome” and
“award[ed] parenting time not requested by the parties.” She also
contended the court should not have ordered her to share the children’s
travel costs with Father or denied her request for two weeks uninterrupted
summer parenting time. The family court made minor changes to its order
relating to winter break and spring break but denied all other relief. Mother
timely appealed.

DISCUSSION

¶7 We uphold a family court’s parenting time determinations
absent an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). An abuse of discretion exists if the record lacks any competent
evidence to support the court’s decision. Little v. Little, 193 Ariz. 518, 520,
¶ 5 (1999).

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DAVIS v. LANSDON
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I. Summer Parenting Time

¶8 Mother contends the court should have given her two
uninterrupted weeks of summer parenting time. The court acknowledged
her request in its A.R.S. § 25-403(A) analysis but gave her only one week of
summer parenting time. Mother asserts one week is inadequate “to shop
for school clothes and supplies, get the kids in for haircuts and medical or
dental appointments, and be able to take them on a minimal vacation.” She
also broadly argues the children will miss out on “being able to spend an
extended time with Mother . . . for vacations.” She presented no evidence
to support either of these contentions. She also conceded on cross-
examination that she could take the children on vacation at other times of
the year during her parenting time. Therefore, we find no abuse of
discretion on this issue.

II. Holiday Parenting Time

¶9 Mother also insists the court abused its discretion by setting a
holiday parenting time schedule that requires travel for the children’s
birthdays, the parties’ birthdays, school breaks, and alternating
Thanksgivings. In cases where parents cannot agree on a parenting plan,
the court “shall adopt a plan that provides for both parents to share legal
decision-making regarding their child and that maximizes their respective
parenting time.” A.R.S. § 25-403.02(A) & (B). The parenting plan must
include “[a] practical schedule of parenting time for the child, including
holidays and school vacations.” A.R.S. § 25-403(C)(3). If the parties cannot
agree on a schedule, the court must set one. A.R.S. § 25-403.02(D).

¶10 Mother first alleges the holiday parenting time schedule is
“contrary to that requested by the parents.” While both parties made
specific holiday parenting time requests at the hearing, the court
determines parenting time based on the children’s best interest, which may
not align with either parent’s demands. Dunbar v. Dunbar, 102 Ariz. 352,
354 (1967) (“The final determination of custody in a divorce action is and
must be determined by what the court considers to be in the best interest of
the child. The wishes of the parents, of course, may and should be
considered; but their happiness and their desires will never be allowed to
interfere with the child’s true welfare.”). The court’s decision not to fully
adopt either party’s requested schedule is therefore not an abuse of
discretion. Armer v. Armer, 105 Ariz. 284, 289 (1970) (the superior court is
in the best position to determine the parenting measures that are in a child’s
best interests and therefore has broad discretion to determine parenting

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time). Indeed, it appears the court simply adopted the holiday schedule the
parties included in their earlier parenting plans.

¶11 Lastly, Mother asserts the holiday parenting time schedule is
impractical because it “require[s] the children to travel between Arizona
and Kentucky a total of six round trips each year for their respective
birthdays and each parent’s birthday, for only one day of parenting time
each trip,” which she contends the parties cannot afford. She offered no
evidence, however, to substantiate this alleged financial burden. She also
testified that she did not believe additional air travel would be more
burdensome for the children. Moreover, we note that Father addressed this
concern in his response to Mother’s motion, stating that he may not exercise
his “holiday parenting time on the children’s birthdays and [his] birthday
because of the short amount of time that he would have the children versus
the burden it may be on the parties and children.” Given these facts, we
cannot say the court abused its discretion in denying Mother’s motion to
amend the holiday parenting schedule.

III. Travel Costs

¶12 Mother argues the court abused its discretion by not ordering
Father to pay all travel costs associated with his parenting time minus one-
half the cost of escorting the children during air travel. As support for this
contention, Mother cites Father’s testimony that he was willing to “bear . . .
three-quarters of the price,” but Father’s willingness to pay more than half
of the children’s airfare does not demonstrate that the court abused its
discretion by not ordering him to pay all travel costs. Because Mother
presented no other evidence to show why Father should bear those costs,
we again find no abuse of discretion.

IV. Attorney Fees on Appeal

¶13 Both parties request their attorney fees incurred on appeal
pursuant to A.R.S. § 25-324(A), which authorizes an award upon
considering “the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings . . . .”
Having considered these matters, we decline to award fees to either party.

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CONCLUSION

¶14 Based on the foregoing, we affirm. Father may recover his
taxable costs upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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